O'Malley v. McNeil

Full title: TIMOTHY JOHN O'MALLEY, Petitioner, v. WALTER McNEIL, Respondent

Court: United States District Court, N.D. Florida, Gainesville Division

Date published: Mar 16, 2011

CASE NO. 1:07-cv-00228-MP-GRJ (N.D. Fla. Mar. 16, 2011)

Opinion

CASE NO. 1:07-cv-00228-MP-GRJ.

March 16, 2011

ORDER

MAURICE PAUL, Senior District Judge

This matter is before the Court on Doc. 36, the Report and Recommendation of the Magistrate Judge, recommending that the Petition for habeas corpus be denied. The Petitioner filed objections, Doc. 40. After conducting a de novo review of the objected to portions of the Report and Recommendation, the Court concludes that the Report and Recommendation should be adopted.

The Court agrees that Petitioner's sworn testimony in open court during his plea colloquy reveals that his medications did not have any adverse effect on his ability to enter a plea, and nothing Petitioner has offered in he petition or objections overcomes the strong presumption of verity such sworn testimony carries. Second, the Court agrees with the Magistrate Judge that that Petitioner all along instructed his counsel to enter a plea at the pre-deposition phase. Thus, any failure to investigate was at the Petitioner's insistence. Also, nothing Petitioner has offered in he petition or objections overcomes the strong presumption of verity given to his sworn testimony that the plea was knowingly and voluntarily entered. Finally, even if state procedures would have required a second examination before a finding of competency, a mere violation of state procedures does not give rise to a federal constitutional violation. Instead, Petitioner must show that objective facts were known to the trial court at the time of the plea to create bona fide doubt as to mental competency. The Petitioner has not presented any such objective facts. Indeed, nothing Petitioner has offered in he petition or objections overcomes the strong presumption of verity given to his sworn testimony that he had been examined and found competent and that he was in fact competent. Accordingly, it is hereby

ORDERED AND ADJUDGED:

1. The Report and Recommendation of the Magistrate Judge is adopted and incorporated herein.

2. The Petition under 28 U.S.C. § 2254 is denied.

3. For the reasons stated above the Court finds that Petitioner fails to make a substantial showing of the denial of a constitutional right and the issues are not adequate enough to deserve encouragement to proceed further. Accordingly, no certificate of appealability is appropriate in this case.

DONE AND ORDERED this 15th day of March, 2011